(a) When work under a Construction Contract is completed, and in the event that the Director determines that the Contractor has failed to fulfill the requirements contained in Section 188.02 concerning Construction Worker Hours performed by Residents of the City or has failed to submit reports as required in Sections 188.02 and 188.04, the City is deemed to have been damaged. Good faith efforts on the part of the Contractor or Subcontractor to provide employment to Residents of the City shall not suffice to replace the actual, verified achievement of the requirements contained in Section 188.02.
(b) If a Contractor breaches a Construction Contract by failing to meet the Resident Construction Worker Hours requirement of Section 188.02, it shall pay the City one-eighth of one percent (0.125%) of the final total amount of the Construction Contract for each percentage by which it fails to meet the requirement or any reduced requirement determined appropriate by the Director according to Section 188.03. If a Contractor does not achieve the Low-Income Person objective, the Director in his or her sole discretion shall determine whether a penalty is appropriate and, if so, the penalty amount the Contractor shall pay the City.
(c) The Director, in addition to any other remedies available for the breaches by a Contractor identified in division (b) of this section or for other defaults under a Construction Contract, may:
(1) Recommend that the City withhold all or part of any payments due the Contractor until such time as the Contractor cures its defaults, pays or credits all penalties or other payments due under the Construction Contract, the Code, or the Standards and Procedures, and is in full compliance with all applicable provisions of the Code, the Construction Contract, and the Standards and Procedures relating to Resident or Low- Income Person employment or reporting;
(2) Recommend, based upon a breach of or default under the Contract relating to Resident or Low- Income Person employment, that the City rescind, cancel, or otherwise terminate the Construction Contract and declare a forfeiture of any performance bond;
(3) Recommend that the Director of Law take such legal action, whether civil or criminal, as he or she deems appropriate;
(5) Recommend that the City make a claim for payment of damages, including any liquidated damages specified in the Contract.
(d) A decision of the Director under this section is final and may be appealed to the Board of Zoning Appeals by filing a notice of appeal with the Board and a copy to the Director within fifteen (15) days of the decision. The Board of Zoning Appeals shall, after a hearing, determine whether the decision of the Director is arbitrary, capricious, or unreasonable. The decision of the Board of Zoning Appeals, in turn, may be reviewed by the Common Pleas Court of Cuyahoga County under RC Chapter 2506, or as otherwise provided by law.
(e) Failure to submit, or knowing falsification of, the reports required in Sections 188.02 and 188.04 shall result in a breach of the Construction Contract subject to assessment of the maximum penalty provided in division (b) of this section, and the penalty shall be calculated as if no Residents of the City were employed on the construction project in furtherance of the Construction Contract.
(f) No Contractor shall knowingly falsify any required reports, statements or payroll certifications. Any Contractor who knowingly falsifies reports, statements or the certification of payroll data is guilty of a misdemeanor of the first degree and subject to a fine of not more than five thousand dollars ($5,000.00). If a Contractor is convicted under this division, that Contractor shall be barred from contracting with the City on any construction project subject to this chapter for a period of five (5) years.
(g) Pending determination by the Director whether a Contractor must pay a penalty under this chapter, the Director may recommend that the City withhold from amounts retained by the City under Section 185.41 and payable to the Contractor, the amount of any penalty payable by the Contractor under this chapter.
(h) The imposition of any penalty or fine under this section shall not preclude the City from exercising any other rights or remedies to which it is entitled.
(i) All funds collected by the City of Cleveland under division (b) or (c) of this section shall be deposited into a special account which shall be created for the sole purpose of receiving said funds. The funds deposited into this account shall be used for the operation of the Office of Equal Opportunity provided such funds have been appropriated for that purpose, provided there is any necessary legislative authority and provided the funds are used in compliance with all laws or restrictions regarding their use.
(j) No person shall knowingly supply false information to establish that the person is a Resident for purposes of this chapter. Any person who knowingly supplies false information to establish that he or she is a Resident is guilty of a misdemeanor of the first degree. Upon conviction, such person shall be barred from employment in furtherance of a Construction Contract for a period of five (5) years.
(Ord. No. 1056-10. Passed 10-25-10, eff. 10-28-10)